A Question of Indictment: Preventing Crimes Against Humanity Or Promoting the ICC?

A Question of Indictment: Preventing Crimes Against Humanity or Promoting the ICC? Paper presented to the Annual Conference of the Canadian Political Science Association, June 2010, Concordia University, Montreal Peter J. Stoett, Concordia University1 Introduction “Judicial romanticism has serious systemic costs in a global community with sharply differing notions about the best way to mete out justice to individuals.” Ratner and Abrams, 2001:345 Will international criminal law survive its long birth? Will the image of an overzealous Chief Prosecutor of the International Criminal Court (ICC) overshadow the potential contribution of a permanent court dedicated to trying those accused of engaging in the most heinous of human acts? Can this be avoided? One of the more vexing questions facing advocates of global justice and peace is whether or not international criminal tribunals and courts should (either routinely, or in extraordinary circumstances) pursue the indictment of accused criminals while the latter retain positions of (state or non-state) power, or move beyond the goal of facilitating post bellum justice.2 Absolute justice would demand indictment proceed regardless of the immediate consequences; yet if this either delays the cessation of violence or increases its intensity, it is not a utilitarian choice unless it can be argued such indictments serve as able deterrents for similar potential crimes. This paper will examine the conceptual dilemma inherent in prosecutorial decision-making by international legal bodies, with principal reference to the historic case of Milosevic in Serbia, and the extant cases of Joseph Kony of the Lord‟s Resistance Army in Uganda and President Omar al Bashir of Sudan. It will conclude with argumentation to support my central position: political 1 Professor and Chair, Department of Political Science. Special thanks to Scott Selders and Marek Brzinski, both Concordia University graduate students, for research assistance. 2 I define power as authoritative decision-making capacity, regardless of the external legitimacy endowed on the position or entity of governance. Thus this includes heads of state as well as leaders of armed factions; it would also include chief executives of private or public corporations, though it is unlikely the ICC would find itself dealing with these individuals. 1 circumstances must trump judicial principle in order to preserve the utility of the ICC in the future and avoid increasing human misery in the present. The ICC is by nature already politicized; it is a creature of politics as much as of law, if not more so (Roach, 2006; Broomhall, 2003), and part of its mandate is to seek peace as well as justice. To pretend otherwise and thus inflict it with a politically complicated and controversial mandate, if and when it pleases permanent Security Council members to do so, will not enhance its legitimacy or effectiveness. And yet it does have a vital role to play in punishing and publicizing egregious crimes against humanity and reinforcing the importance (if not the realization) of the principle of the responsibility to protect (Bellamy, 2009). However, it is at risk of becoming little more than a paper substitute (albeit one with real and deleterious consequences) for stronger international action in cases of urgent threats to human security.3 This paper will ask several questions related to the legitimacy of the indictments, questions present in discussions related to international intervention in general. The ICC is at a jurisdictional crossroads, and there are genuine fears that the extant arrest warrants have not only delayed active peace negotiations, but will also compromise the longer- term legitimacy of the ICC itself. The use of international criminal tribunals to pursue foreign policy ends is, of course, nothing new; many would agree that the International Criminal Tribunal for the Former Yugoslavia (ICTY), for example, was an instrument of NATO. This would be an unfair (if understandable) accusation, yet the use of the ICC by Security Council members will remain an ongoing issue regardless of the cases it decides to put to (or defer from) trial. Without this structural contingency, however, it is unlikely that any of the permanent members of the SC would have or will proceed to ratify the Rome Statute. Thus we are stuck in a conceptual bind, between justice, peace, and self- interest. Ironically, Security Council restraint might prove to be a silver lining. Selectivity, Deterrence, and Counter-productivity I do not propose to debate the proposition that former heads of state accused of crimes against humanity or war crimes should be forced, where possible, to stand trial, or that the principle of absolute immunity ratione materiae (Akande, 2006:51-53) should be revived (on former Chilean dictator Pinochet, for example, see Wilson 1999; more generally, Orentlicher, 1991); or that leaders of militarized rebel groups should walk free after conflicts end. Rather, the sole focus here will be on leaders who retain office or extra-legal power while violent conflict is proceeding. Do such indictments in fact hinder peace negotiations, as is often alleged? Do they do more harm than they can possibly deflect from the human security of citizens caught in the midst of conflicts? This paper begs further empirical research into each of these questions, but offers some preliminary observations in the meantime. Nor is it even reasonable to continue the debate over the validity of international legal responses to civil or intrastate wars. By their very nature, crimes against humanity, 3 As Thomas Smith writes, it is “relatively painless for states to endorse the morally pristine workings of a Hague tribunal that has been established under international treaty and which accords suspects the full complement of legal rights and safeguards. It will be much harder to seek immediate or preventive justice by intervening to stop atrocities” (2002:179). 2 genocide, and war crimes encompass behaviour during intrastate wars as well as international conflict. And though arguments for the justification of military courts - which are invariably courts where “victor‟s justice” is practised – have been put forth (Thornberry, 1996), most if not all human rights advocates are firmly in favour of non- military tribunals to deal with mass atrocities today. But non-military tribunals invariably involve the outside community; amongst others, Grodsky believes that, while it is “human rights organizations or victims groups [which] frequently advocate for international trials … it is external state actors that are the engine for justice” (2009:689).4 Thus “the gradual move towards the internationalization of criminal accountability can pit new political elites against two opposing pressure groups, international and domestic. High levels of political or economic pressure can convert international actors into important actors on the domestic stage … Transitional justice is mutated into an exercise of subtle two-level bargaining….The resulting ... forms of transitional justice may be insincere, incomplete and, to the local community, irrelevant” (ibid, 694). The promises of even limited ICC success are indeed enticing. Most notable is the possibility of ending (or, more reasonably, mitigating) the infamous culture of impunity that has frustrated the quest to end mass atrocities such as genocide and systematic rape. But we must also gauge the impact of indictments on the human security of those suffering most from the perpetuation of conflict, as well as their impact on transitional justice following the cessation of conflict (as we will see, determining that an end to hostilities has actually occurred is itself fraught with problems). Finally, if we are to take seriously the long-term prospects of the ICC‟s legitimacy, we must ask the political – and not legal – question of whether such arrest warrants are increasing or decreasing the international opinion of the validity (and even the very function) of the court itself. Most profoundly, perhaps, we face a question of who justice is for: is it victim-centered, or need it serve a broader purpose where international actors are involved (Glasius, 2009)? There is limited empirical evidence to suggest this is a false dichotomization. While it is obvious that we have limited recourse to empirical evidence, since the ICC has in effect just begun its historic mission, it is certainly not too soon to delve into these political questions. Two opposing camps have formed: one argues that breaking international criminal law is a crime regardless of when it occurs and that absolute justice demands immediate treatment, regardless of the consequences; the other argues that peace settlements, with all the attendant possibilities of continued power or amnesties for accused criminals, should precede indictments, and that the latter will only prolong ongoing conflicts. It is difficult to escape this dichotomization of the issue. While the question of selectivity will always hound the quest for absolute justice in a system composed of sovereign states with marked discrepancies in power, and there will always be the possibility of counter-productivity in the joint pursuit of justice and peace, the indictment of leaders in positions of power is an especially thorny conundrum, and those members of the international community intent on establishing the permanency and effectiveness of the ICC must realize there are sharp political limitations to its abilities. 4 It is

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